Jammie Thomas judge: “error of law” may result in new trial

Jammie Thomas may get another chance to make her case before a jury. Judge Michael Davis notified attorneys earlier today that he is leaning towards granting Thomas' request for a new trial in light of what he now apparently believes was a flawed jury instruction.

"The Court is concerned that Jury Instruction 15 may have been contrary to binding Eighth Circuit [U.S. Court of Appeals] precedent," Davis wrote in an order seen by the Minneapolis Star-Tribune and filed this morning. The instruction in question was a point of contention as testimony in Virgin v. Thomas wrapped up. The first draft of the jury instructions specified that merely making a file available over a P2P network wasn't sufficient to prove infringement. Instead, the RIAA must show that an "actual transfer took place."

But RIAA lead counsel Richard Gabriel argued forcefully that merely making a file available on KaZaA was sufficient to prove infringement, and Judge Davis ultimately agreed. Now, the judge believes that he made a "manifest error of law." Here's the text of instruction 15 as it was given to the jury:

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

Thomas' appeal of the $222,000 verdict actually hinged on what she argues are "unconstitutionally excessive" damages; she didn't raise the making-available issue in her notice of remittur filed 11 days after the verdict was handed down. She wanted a new trial with any award to be based on the RIAA's actual damages, a figure that one recording industry executive testified it "had not stopped to calculate."

Judge Davis apparently isn't addressing the issue of the damages, instead focusing on the Eighth Circuit ruling, one that neither party in the case had brought to his attention. Similar to other rulings made recently, the Eighth Circuit held that "'infringement of [the distribution right] requires an actual dissemination.'"

Attorneys for Thomas and the RIAA will be required to submit briefs by May 29 and other "interested parties" are also encouraged to submit amicus briefs. It's highly likely that the Electronic Frontier Foundation will take the judge up on his offer, given the group's involvement in other cases like Atlantic v. Howell.

The circumstantial evidence against Thomas in this case is strong, so even if she's given a new trial, it may end with the same result as the last one. RIAA lead counsel Richard Gabriel told Ars that there was "no evidence" to support the various theories expounded during Thomas' defense and is prepared for the judge to call for a do-over. "Although we do not believe that the court should disturb the unanimous verdict of the 12 jurors that weighed the evidence in this case, if we have to re-try the case, we will do so without hesitation," said Gabriel.

Still, Judge Davis' decision is another milestone in the RIAA's legal campaign against P2P users, as it further undermines the labels' argument that merely making a file available on a P2P network is an infringement of their right to distribute their copyrighted songs to the "public." The judge's decision may force the RIAA to prove that unauthorized distribution actually took place, which could also have the effect of slowing the current campaign against collegiate file-swappers.